Argued January 5, 2015
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Substitute information charging the defendant with the crimes of robbery in the first degree and conspiracy to commit robbery in the first degree, brought to the Superior Court in the judicial district of Fairfield and tried to the jury before Kavanewsky, J.; verdict and judgment of guilty of robbery in the first degree, from which the defendant appealed to this court.
Convicted of the crime of robbery in the first degree, the defendant appealed to this court. The defendant's conviction stemmed from an incident in which he and three other men robbed a grocery store. The defendant testified that one of the men, B, had asked him to ride with him to New Haven, but that B instead drove to the store with the two other men, one of whom, J, then entered the store to collect on a winning lottery ticket while the other three men stayed in the car. The defendant testified that the storekeeper, A, had concocted the story about the robbery to avoid paying J the lottery winnings. The defendant claimed, inter alia, that he was deprived of his constitutional right to conflict free representation because the trial court inadequately canvassed him as to his desire to proceed with his retained counsel, S, who had represented both the defendant and B in the pretrial phase of the proceedings.
1. The defendant could not prevail on his claim that the trial court did not secure from him a valid waiver of his right to conflict free representation because it failed to canvass him thoroughly regarding S's conflict of interest, as the court knew of the conflict but relied on the defendant's persistent representations that he wanted to proceed to trial with S as his counsel: although the court was aware that B might testify on the defendant's behalf, it properly deferred to the defendant's expressed desire to proceed to trial with the assistance of S, as the defendant confirmed that he was aware of S's obligations to B and had discussed the potential conflict with S, and the court informed the defendant of S's continuing obligations to B and the ethical barrier to using information S had acquired as a result of representing B; moreover, the defendant's waiver was valid despite the court's failure to elicit narrative responses from him during the canvass, as his responses were clear and unequivocal, and he declined to consult independent counsel when the court gave him the opportunity to do so.
2. The defendant's unpreserved claim that the trial court violated his constitutional right to present a defense by inducing B to invoke his privilege against self-incrimination and not testify was unavailing; the court acted properly in advising B of his constitutional rights without exercising undue influence when it cautioned him about the possible consequences of testifying, and B was given the opportunity to consult with his counsel following the court's canvass.
3. The trial court did not abuse its discretion by precluding the defendant from offering certain lottery ticket evidence, the defendant having failed to establish a prima facie showing of the tickets' authenticity; no identifying information on the tickets indicated that they originated from the store that was robbed, and the defendant had no knowledge from which the jury could infer that they came from the store, and did not testify as to who purchased the tickets, who issued them, or when they were created.
4. The defendant was not denied his right to a fair trial as a result of certain statements by the prosecutor during closing argument analogizing A to a prostitute rape victim and referring to J, who was from New Jersey, as " muscle" that the defendant imported from out of state to rob the store: the mention of rape was not an appeal to the passions of the jury, as the comment was not likely to have been misunderstood because it was aimed at defeating the possible defense view that A deserved to be robbed because he had been running an unlawful lottery; furthermore, although the prosecutor misstated evidence and improperly attributed to the defendant a plan to use J as an enforcer to carry out the robbery, the improper statements did not deprive the defendant of a fair trial, as they were isolated and not severe, the defendant did not object or request a curative instruction, and the state's case was strong.
Janice N. Wolf, assistant public defender, for the appellant (defendant).
Emily D. Trudeau, deputy assistant state's attorney, with whom, on the brief, were John C. Smriga, state's attorney, and Joseph J. Harry, senior assistant state's attorney, for the appellee (state).
Sheldon, Prescott and Pellegrino, Js. SHELDON, J. In this opinion the other judges concurred.
[157 Conn.App. 455] SHELDON, J.
The defendant, Tinesse Tilus, appeals from the judgment of conviction, rendered after a jury trial, of robbery in the first degree in violation of General Statutes § 53a-134 (a) (2). On appeal, the defendant claims that his conviction should be reversed and his case should be remanded for a new trial on grounds that (1) the trial court violated his sixth amendment right to conflict free counsel by inadequately canvassing him as to his desire to proceed with retained counsel who had previously represented both him and one of his codefendants in the case; (2) the trial court violated his sixth amendment right to present a defense by inducing that same codefendant, a key defense witness, to invoke his fifth amendment privilege against self-incrimination and not testify; (3) the trial court abused its discretion by declining to admit certain physical evidence received from his nontestifying codefendant in support of his theory of defense; and (4) the prosecutor violated his right to a fair trial by committing several improprieties in closing and rebuttal arguments to the jury. We affirm the judgment of the trial court.
The jury was presented with the following evidence upon which to base its verdict. On December 28, 2011, at approximately 8 p.m., Rene Aldof and his employee, Ramon Tavares, were tending Aldof's store, the Caribbean-American Grocery and Deli (store) located at 263 Wood Avenue in Bridgeport, when four men entered the store. One of the men was the defendant, whom Aldof recognized as " Tinesse," a regular customer of the store. Aldof also recognized a second man, Jean Barjon, but did not recognize either of the two other [157 Conn.App. 456] men. One of the unknown men pulled out a handgun and demanded that Aldof give me the money, while the other three men, including the defendant, " encased" him in an
effort to prevent his escape. Aldof was able to push past the men and exit the store, pursued by one of the men, who unsuccessfully attempted to restrain him by grabbing his coat. Aldof ran into a nearby laundromat, where he held the door shut to prevent his pursuer from coming in behind him.
Tavares, who remained in the store after Aldof's departure, was stationed in a plexiglass enclosed booth where the cash register was located. A man approached the booth, pointed a handgun at Tavares' head and ordered him to open the door. Tavares immediately complied, and the man entered the booth. The man, still holding the gun in his outstretched hand, " turned" Tavares to face the wall and told him to place his hands up against the wall. Tavares " felt something in the back of [his] head," and the man demanded that he " give him all the money." The man took Tavares' cell phone and wallet, and the money in the cash register. Tavares asked the man to return his wallet, as it contained his papers, and the man did so, keeping only the cash inside the wallet. Tavares stood facing the wall until he heard the man exit the store.
Patrol Officer Elizabeth Santora, of the Bridgeport Police Department, was on her dinner break, driving down Wood Avenue in a marked police cruiser, when she observed a person later identified as Aldof, standing outside of the Laundromat, waving his arms and screaming " like a crazy person because [he] thought that [he] was going to die." Aldof told Santora that he had just been robbed at gunpoint, and he pointed to one [157 Conn.App. 457] of his alleged assailants, who was still in the immediate vicinity. Once Santora focused on the suspect, he started walking fast down Wood Avenue. Santora immediately followed him in her cruiser, and Aldof followed on foot, shouting that the man had just robbed him.
Santora kept the suspect in her sights as he broke into a run and turned the corner onto Sherwood Avenue. There, Santora observed the suspect come to a halt next to several trash cans outside of the Esquina Latina Restaurant. Santora stopped her cruiser, got out of her vehicle and shouted, " don't even fucking move." The suspect heeded the order. Santora approached the suspect, gave him a " quick patdown," then grabbed him by the back of his pants and pulled him toward the police cruiser.
As Santora approached the cruiser with the suspect in tow, she observed a white Nissan Altima that had been parked on Sherwood Avenue begin " pulling off" into the street. Aldof, then positioned on the corner of Wood and Sherwood Avenues, told Santora that the three men in the Altima had also been involved in the robbery. Santora flagged down the vehicle and told its driver to stop the car and give her the keys. The driver obeyed. The first suspect and the three men in the Altima were detained for questioning. The men were later identified as Guillatemps Jean-Philippe, Jean Louis, Barjon, and the defendant. Aldof confirmed that the detainees were the same four men who had robbed his store.
Once the scene had been secured, Santora and several other members of the Bridgeport Police Department searched the surrounding area for the gun that allegedly had been used to perpetrate the robbery. A nine millimeter pistol was discovered on the ground in the vicinity of the trash cans where Santora had apprehended the fleeing suspect. The pistol was taken [157 Conn.App. 458] into evidence and later sent to the firearm and tool mark division of
the state forensic science laboratory for testing and analysis. The pistol was examined, test fired and found to be operable. A search of a national database revealed that the pistol had been used in a recent incident in New Jersey.
The defendant was arrested and charged with one count each of conspiracy to commit robbery in the first degree in violation of General Statutes § § 53a-48 and 53a-134, and robbery in the first degree in violation of § 53a-134. The defendant pleaded not guilty to the charges and elected a jury trial.
The defendant, who testified in his own defense, challenged Aldof's account of events on the evening of the alleged robbery. The defendant testified that he had known Aldof since he was a small child because their families came from the same part of Haiti. He also testified that he had been in Aldof's store " many times," and that on such occasions he had observed Aldof running an illegal Dominican lottery. The defense claimed that Aldof had concocted his story about the alleged robbery to avoid paying out a large sum of money to one of the alleged coconspirators, Jean-Philippe, who had gone to Aldof's store alone that evening to collect on a winning lottery ticket he had bought there.
The defendant explained that on the night of the alleged robbery, his friend, Barjon, had come to his house at about 7 p.m. and asked him if he would like to take a ride to New Haven. When he agreed to do so, he got in Barjon's car, where Jean-Philippe and another man he did not know were seated in the rear passenger seat. The defendant was told that Barjon had agreed to drive the two men to the train station in New Haven. Instead, however, Barjon drove to Aldof's store and parked his car on the corner of Wood and Sherwood Avenues. The defendant testified that once they arrived [157 Conn.App. 459] at the store, Jean-Philippe, " with no mention, nothing," got out of the car and entered the store. The defendant and the other two men remained in the parked car, where the defendant called a friend on his cell phone. Shortly thereafter, while he was still on the phone, he saw Jean-Philippe and a police officer approaching the vehicle. When Jean-Philippe tried to open the car door, the police officer ordered him to stop. The defendant and the other two men were then escorted into a police van, questioned, and later arrested.
Jean-Philippe also testified for the defense. Jean-Philippe stated that he did not know the defendant, but that he was a friend of Barjon. He testified that he had gone to Aldof's store on the evening of December 28, 2011, to collect $39,000 in lottery winnings, but that Aldof had refused to pay him. Jean-Philippe claimed that he went into the store alone while the other three men remained in the car, drinking coffee and smoking cigarettes. In the store, Jean-Philippe met Aldof, whom he referred to as the " old man," and produced his receipt with the winning lottery numbers and showed it to him. In response, Aldof left the store and walked into the laundromat next door. When Jean-Philippe was later arrested, he told police that he had played the lottery at the store and had gone back there to collect his money. Jean-Philippe also claimed not to have seen anyone but Aldof in the store that evening, although he testified that he did not know whether someone
else may have been in the store, in the section " where they [157 Conn.App. 460] play the Lotto . . . ."  Jean-Philippe denied having a pistol.
The jury found the defendant guilty of robbery in the first degree. The jury found him not guilty, however, of conspiracy to commit robbery in the first degree. The court rendered judgment in accordance with the jury's verdict, sentencing the defendant to a term of twelve years incarceration, execution suspended after eight years, followed by four years of probation. The defendant appeals from that judgment.
The defendant first claims that the trial court's failure to secure a valid waiver violated his constitutional right to conflict free representation. Specifically, he claims that the court, having knowledge of his trial counsel's conflict of interest due to his prior representation of the codefendant, Barjon, improperly relied on the defendant's ill-advised representations that he wanted to proceed to trial with his retained counsel rather than conducting a more thorough canvass regarding his trial counsel's conflict of interest. We disagree.
The following additional facts, which are undisputed in the record, are relevant to our resolution of the defendant's claim. The defendant was arraigned on December [157 Conn.App. 461] 29, 2011, at which time he was assisted by counsel from the Office of the Public Defender. His codefendant, Barjon, was arraigned on the same day, and he, too, was assisted by counsel from the Office of the Public Defender. One month later, on January 31, 2012, Attorney Eroll Skyers filed appearances in both cases. Shortly thereafter, on February 7, 2012, the defendant entered a plea of not guilty before Judge Robert J. Devlin, Jr. At that time, Skyers informed Judge Devlin that he represented both the defendant and Barjon in their pending cases. On April 9, 2012, in front of Judge Devlin, the defendant appeared with Skyers and rejected the state's plea offer, and his case was placed on the trial list.
On October 2, 2012, Skyers appeared in court before Judge Devlin with Barjon, who had communicated, through counsel, his intention to plead guilty under the Alford  doctrine to the charge of conspiracy to commit robbery in the first degree. Barjon failed his plea canvass, however, and thus the court vacated his guilty plea.
Because, at that time, it was clear that both Barjon and the defendant intended to proceed to trial, the court raised with Skyers the potential conflict of interest presented by his continued representation of both men. In this regard, the court focused initially on problems associated with Skyers' continued representation of Barjon. Skyers responded by stating for the record that when Barjon and the defendant first came to him seeking joint representation, he had informed them that [157 Conn.App. 462] there could be a potential conflict if both cases proceeded to trial. Although both men persisted in their desire to have him represent them, they agreed that Barjon would retain other counsel if his case was not resolved by entering a guilty plea.
The prosecutor then questioned whether, under the circumstances, Skyers' continued representation of the defendant was advisable. On that score, the prosecutor noted, specifically, the possibility that the defendant would call Barjon to testify in his defense. The court stated, " I guess we'd have to cross that bridge when we come to it. I think, though, that Mr. Barjon would have a fifth amendment right not to testify and therefore could assert [it], and whoever represented him would probably advise him to do so before his case was concluded. And I would think that--he could choose to testify, I guess, but he could not be compelled to testify against his interest. And I suspect that the lawyer would advise that, but maybe not."
The court then asked Skyers if he had discussed the matter with the defendant, and he confirmed that he had, stating, " at the time that I was retained by [the defendant], he's actually who came to me first, I advised him that I'd be happy to represent him. He . . . indicated that Mr. Barjon wanted to speak to me. And in both of their presence, I indicated that potentially this would be a conflict if I represented both of them, but they persisted and they agreed on my representation in the early stages of this case." Skyers informed the court that the defendant was present, if the court wanted to question him. The following colloquy then took place between the court and the defendant:
" The Court: So, if Attorney Skyers continues to represent you, Mr. Tilus, he's asking that he basically be taken off of Mr. Barjon's case and Mr. Barjon get his [157 Conn.App. 463] own lawyer on the case, which would ...